The opinion of the court was delivered by: BERNARD ZIMMERMAN, Magistrate Judge
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff seeks damages under general maritime law and the
Jones Act, 46 U.S.C. § 688, from defendants Foss Maritime Company
("Foss") and Shore Terminals LLC ("Shore") for injuries plaintiff
sustained after he fell from a ladder while attempting to access
the SAN PEDRO (the "vessel" or "barge"), a barge owned and
operated by Foss, from Shore's dock. Having considered and
weighed all the evidence and having assessed the credibility of
the witnesses, I now make these findings of fact and conclusions
of law as required by Fed.R.Civ.P. 52(a): I. FINDINGS OF FACT
Plaintiff Paul Wuestewald, sixty years old, has been working in
the marine industry for over thirty years, and as a tankerman for
over 20 years. In 1996, he was employed by Foss as a certified
tankerman. As part of his responsibilities, plaintiff loaded and
unloaded bunker fuel at various terminals throughout the San
On October 16, 2001 Foss owned and operated the SAN PEDRO, a
186 foot-long barge inspected by the Coast Guard pursuant to
46 U.S.C. § 3301. See Joint Ex. 14. The SAN PEDRO is a "bunker
barge" employed to carry cargoes of bunker oil used as fuel for
sea-going ships. Around the periphery of the barge's steel deck
is a five inch high steel ridge called the "coaming" that is
located twenty-four inches from the edge of the vessel. Around
the edge of the barge is a hemispherical "slip rail" which
protrudes about 6 inches from the vessel.
On October 16, 2001, defendant Shore owned and operated a dock
at a fuel oil loading terminal in Richmond, California (the
On October 16, 2001, plaintiff was working on the SAN PEDRO
loading bunker fuel at Shore's terminal in Richmond, California.
He was its only crew member. By approximately 5:40 p.m., the
barge was fully loaded. Plaintiff returned to the dock to (1)
check the draft lines, which measure how low the barge rests in the water,*fn1 (2) complete paperwork
with Shore's personnel, and (3) return a radio earlier given by
Shore to plaintiff during the loading or unloading process.
Shore does not ordinarily provide a gangway or a convenient
ladder to access its dock. It was the custom and practice of Foss
tankermen to use a portable ladder to access the dock and Foss
barges were equipped with ladders for that purpose. It was also
their custom and practice not to tie off the ladder at Shore's
terminal, principally because of the risks associated with having
a ladder fixed in place on a barge that could move up or down.
Captain Russell, who supervises the tankermen, admitted that
there was nothing specific on the dock to which to tie a ladder.
Three tankermen testified that they were unaware that a gangway
was available upon request. It was undisputed that a gangway
could be rigged to the SAN PEDRO.
The tide that evening was extremely low. After loading, the
deck of the barge rested nine to twelve feet below the dock
surface.*fn2 Consistent with his customary practice of accessing the dock, plaintiff braced the bottom of an
aluminum ladder inside the side of the coaming facing the dock
and leaned the ladder against the dock.*fn3 When plaintiff
attempted to climb the ladder, it started to fall backwards
because the angle was too acute. Plaintiff then moved the base of
the ladder towards the center of the San Pedro and outside the
coaming. I find that there was no suitable place against which to
brace the ladder or to tie off the ladder at either end.
Plaintiff climbed the ladder to the dock without difficulty and
completed his tasks. Before descending, plaintiff tested the
ladder with his left foot. The ladder felt secure. When he placed
his right foot on the rung the ladder slipped from the bottom,
causing him to fall approximately nine to twelve feet to the deck of the San Pedro. No evidence was presented on what
caused the ladder to slip.
The edge of the dock had two 12" by 12" wooden "stringers"
separated from a cement curb on the dock by a twenty-four inch
gap. There were no cleats or hooks affixed to the stringers to
which a ladder could be tied or secured. A permanent steel ladder
was affixed to the side of the dock approximately eighteen to
twenty-four inches from and perpendicular to the side of the
barge. To use the ladder, plaintiff would have had to step over
both mooring lines and eighteen to twenty-four inch rubber
fenders surrounding the barge and swing out over the water using
one hand to grasp the ladder. It is undisputed that this is an
emergency ladder and that the bottom rungs are slippery due to
the presence of barnacles and moss.
Foss calls on several terminals in the San Francisco Bay Area
and is aware of the customary use of ladders to access the docks.
Foss never conducted systematic visits to these terminals to
investigate conditions affecting dock accessability or to verify
the feasibility of following its own ladder safety
guidelines.*fn4 It did not arrange for Shore to provide a
gangway when needed or for Shore personnel to assist Foss personnel in accessing the dock. It did
not ask Shore to provide cleats or hooks on the dock to which
ladders could be tied. It provided no guidance for safe access by
the tankermen other than what is stated in Foss safety manuals.
Captain Russell testified that prior to the accident, he
conducted regular safety meetings but never specifically
addressed how to safely use ladders in dangerous circumstances,
on the grounds that its tankermen were experienced.
Defendants argued they should be absolved from any liability
because plaintiff was negligent in failing to (1) ask Shore
employees to lower a gangway, (2) secure the ladder at the top to
hoses on the dock or to a steel threaded bolt on the back of the
stringers, (3) secure the ladder at the bottom to a cleat, (4)
ask Shore personnel to hold the ladder or tie it off from the top
before ascending or descending, (5) use a bucket to transfer
required paperwork rather than delivering it personally, (6) wait
for the tug crew to hold the ladder before accessing the dock,
and (7) throw a line from the base of the barge up and through
the twelve inch gap in the dock space and then grabbing the line
with a rod and securing it to the ladder.
I decline to fault plaintiff for failing to employ many of the
suggested alternatives. The majority are not included in Foss's
Safety and Loss Manual or in its Tank Barge Operations Manual.
Some involve greater risk than plaintiff's use of a ladder.
Foss's suggestions were not provided to tankermen at the safety
meetings conducted by Captain Russell. They also fail to appear on the Coast Guard
"Report of Marine Accident Injury or Death" completed by Captain
Russell immediately following the accident. See Joint Ex. No.
16, p. 2.
Foss defends its policies on the grounds that it is impossible
to instruct its tankermen on every imaginable hazard. Safe dock
access and ladder safety, however, fall within the range of
expected problems encountered when loading or unloading the
barge. The effect of low tides on dock accessability, while
infrequent, is regular and expected. I do fault plaintiff, when
faced with an unusually low tide which prevented him from bracing
his ladder against the coaming, for not seeking assistance from
Shore personnel, either to provide him with a gangway or to help
him with the ladder. While Foss had not arranged for such
assistance, Shore personnel testified that they helped when
asked. I assign to plaintiff 20% of the fault for this accident.
The fall caused plaintiff to fracture his right heel, sustain a
mild vertebrae compression fracture, and injure his right hip and
hand The pain in his hand has largely resolved since the
accident, and his hip, back and foot pain are being treated with
anti-inflammatory and pain medication, when necessary, at a cost
of $90.00 per month. As a result of his injuries, plaintiff has
difficulty sitting for extended periods of time and can only walk
for two to three blocks due to the pain in his heel. He is unable
to grip heavy objects with his hands. Prior to the accident, plaintiff enjoyed fishing, bowling, and playing with